Report shows HP sought expert to help find leak

Jenkins, formerly a top investigator with Kroll, the nation's largest detective agency and a firm used by many large corporations, advised HP to use pretexting to obtain private telephone records, according to the report by the law firm, Wilson Sonsini Goodrich & Rosati.

Pretexting is a practice of using questionable methods to obtain private phone records.

Jenkins, a senior adviser to the president of Rand, has not responded to repeated requests since Friday for an interview. He is acknowledged as a specialist on terrorism and counterinsurgency.

The law firm's report did not contain an interview with Jenkins, and not all the information the lawyers obtained in the interviews has proved to be accurate.

At the time, HP was paying Jenkins as a consultant on crisis management and security matters. He had helped HP plan responses for significant events like a pandemic caused by the bird flu.

According to the report by the law firm, which was requested by HP in August to investigate the methods used to spy on directors, "Jenkins specifically recommended that they conduct pretexting to get information if they had not already done so."

The report said that the company's general counsel, Ann Baskins, called Jenkins on Jan. 30. Kevin Hunsaker, a senior counsel working for Baskins, also told the lawyers at Wilson Sonsini that he spoke with Jenkins. The lawyer's report said that Baskins told Patricia Dunn, the company's chairman at the time, that "Jenkins agreed with their techniques."

Some assertions made by Baskins that are found in the report have been contradicted by other documents. A telephone call late Monday to Baskins' lawyers was not returned.

The same investigation by HP's law firm into the company's spying did not find that the company's chief executive had any early knowledge of the pretexting used by its detectives.

Mark Hurd, the chief executive and now, also the chairman, told lawyers with Wilson Sonsini in late August that he had not heard the term pretexting during the investigation of board leaks.

According to the report, Hurd did recall hearing at a meeting on July 22, 2005, that phone record information was obtained off the Web. He told the lawyers that he "remembered thinking that must be a Web site with such information."

Hurd's statements were included in the report, which the company provided to congressional investigators. The document was among those members of a House subcommittee had before them when they questioned Hurd last week.

His statement in the report is consistent with other statements he has made about his knowledge of the investigation. In a news conference in September and again before the House subcommittee investigating pretexting, Hurd said he briefly attended the meeting on July 22, 2005, in which the investigation of a leak from the boardroom was discussed.

Hurd told the company's outside law firm that he "recalled thinking at one point that the people at the meeting did not know what they were talking about--that they had theories with 'nothing behind them.'" The law firm's report also said Hurd recalled "being under whelmed by the details."

He left the meeting early to catch a flight back to Ohio, where his home was at the time. Hurd, who was hired by HP at the end of March 2005 was moving his family to California.

The earliest mention of pretexting by a top company executive came in a meeting on June 15, 2005, according to company documents. Handwritten notes of the meeting with private investigators reveal that Baskins, the general counsel, knew about the use of pretexting. Dunn, the company's chairwoman who had ordered the investigation, attended that meeting.

Those same methods were then used in a second phase of the investigation in January. In that phase, the leak investigation was turned over to Hunsaker, who continued using the detective agency that Dunn and Baskins used initially.

Dunn resigned from the board, but she testified before Congress that she did not recall the June 15 meeting. Baskins resigned last week and then refused to testify before Congress, invoking her Fifth Amendment right against self-incrimination. Hunsaker refused to resign and was fired. He also refused to testify and also invoked the Fifth Amendment.

The Wilson Sonsini report is notable for the attempts by the firm's lawyers, Bahram Seyedin-Noor and Bryan Ketroser, to establish when particular company executives had knowledge of pretexting. The method may not be illegal, but the company has acknowledged that it is unethical and should not have been used.

The Wilson Sonsini lawyers were particularly interested in the use of Social Security numbers in the efforts to obtain phone records, but they uncovered no evidence that the company had provided them to private detectives.

The report also shed light on the legal opinion the company sought to verify the legality of using pretexting to obtain phone records.

The Wilson Sonsini report found that HP lawyers relied on a legal opinion prepared by a law clerk, not a lawyer, at a firm associated with Ronald DeLia, the private detective the company had hired to find the source of the leaks.